Ontario Criminal

Criminal Law

General principles


Fresh evidence of identity documents was not admissible

Based on age of accused. Four deceased family members were found in car submerged in water in canal system. Three other family members, S, T, and H, were each convicted of four counts of first degree murder. Accused contended that H should not have been tried with other accused, his parents, because he was too young to be tried as adult. H sought to admit fresh evidence as to proof of age. Accused appealed. Appeals dismissed. Fresh evidence of three identity documents was not admissible and effect was not to be given to remedies sought as consequence of their proposed reception. When deceased were killed, H was not “young person” as defined in s. 2(1) of Youth Criminal Justice Act. Jurisidictional challenges advanced first time on appeal were exceptional, all more so when information necessary to ground challenge was within peculiar knowledge of accused and his parents who, when asked, said he was 18. Compelling evidence was not provided to show that H was “young person”. Since proposed evidence did not go to findings of fact essential to determination of guilt or adjudicative fairness, greater emphasis was placed on avoiding “gaming the system” by challenge to jurisdiction on appeal after adverse verdict at trial. Principal evidence tendered for admission, tazkira document, would not be admissible under adjectival law if tendered on jurisdictional challenge at trial. As proof of H’s age, document was hearsay, its author and time of relevant entry being unknown, and even double hearsay if source was unknown “local representative”. Birth date of December 31, 1991 was asserted solely on basis of “new” document and despite lengthy history of consistent and repeated representations, some in sworn declarations to gain entry into various countries including Canada, that H was born on December 31, 1990.

R. v. Shafia (2016), 2016 CarswellOnt 17126, 2016 ONCA 812, David Watt J.A., P. Lauwers J.A., and G. Pardu J.A. (Ont. C.A.).

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